ANTHONY KESSE vs. ADWOA AGYEIWAA [2017]DLCA4566

Date	2017-10-24
Suit No.	CIVIL APPEAL NO.: H1/54/2017
Citation No.	[2017]DLCA4566

E. K. AYEBI J.A. (PRESIDING)

G. TORKORNOO (MRS) J.A.

A. M. DOMAKYAAREH (MRS.) J.A.

ELIOT GHARTEY FOR THE DEFENDANT/APPELLANT

MARGARET MARY AGYEI TWUM FOR THE PLAINTIFF/RESPONDENT

[2017]DLCA4566
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													<main id="main" class="content" style="min-height: 60rem" >ANTHONY KESSE<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ADWOA AGYEIWAA<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO.: H1/54/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 24TH OCTOBER, 2017<o:p></o:p>

MARGARET
MARY AGYEI TWUM FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>

</div>DOMAKYAAREH (MRS), J. A.<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This appeal has arisen from a dispute involving
title to a plot of land situate at Fawoade New Site near Kumasi.<o:p></o:p>The
genesis of the dispute is that the plaintiff/respondent (herein after called
the respondent) per her Statement of Claim, averred that she acquired the said
plot of land in 1998 from the Oheneyere Atta Gyapomaa Stool Land at Fawoade New
Site.&nbsp; She was issued with an Allocation
Note and a Site Plan.&nbsp; She said she
caused a Building Plan to be drawn for her.&nbsp;
She started construction of a six bedroom, a hall, kitchen, one toilet
and one bath and two store rooms on the plot according to her Building Plan
which was approved by the District Assembly. After constructing up to the floor
level she suspended construction due to financial constraints and started a
garden in-front of the house.&nbsp; She had a
call from her son in 2011 that someone had started construction on the
foundation she had laid.&nbsp; She went to the
site and discovered that the defendant/appellant (hereinafter called the
appellant) was constructing four bedrooms on her original plan.&nbsp; The respondent said she confronted the
appellant. She subsequently reported the matter to the Mamponteng Police and
later, the Lands Commission.&nbsp; She said an
officer from the Lands Commission went to the site and wrote “Stop Work” on the
building. &nbsp;The parties were invited to
the Lands Office and after some deliberations there she was advised to seek
legal redress as the parties could not resolve their differences.&nbsp; The respondent therefore instituted this
action against the appellant at the Circuit Court in Kumasi on 3rd April 2013
claiming the following reliefs against him, namely:<o:p></o:p>&nbsp;a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration
of title and recovery of possession of House No. Plot 1 Block A, Fawoade New
Site near Kumasi.<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Damages for trespass and <o:p></o:p>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual injunction against the
defendant, his agents, assigns and all those who claim title through him from
dealing in any way with the property numbered Plot 1 Block A Fawoade New Site
near Kumasi.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The appellant on his part denied that
the respondent was entitled to any of the reliefs at all.&nbsp; On the contrary, he averred per his Statement
of Defence that the plot he was working on was Plot 8, Block ‘O’ Fawoade and
that the said plot was originally acquired by Kofi Mensah alias Yesu Bogya an
ex-husband to the respondent. He said he bought the said Plot 8 Block ‘O’
Fawoade from the late Oscar Ofori Atta a lawful attorney to Oheneyere Atta
Gyapomaa Stool Land at Fawoade.&nbsp; He
averred that:<o:p></o:p>•&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the said Oscar Ofori Atta transferred
his title and ownership in the plot to him absolutely; <o:p></o:p>•&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the said transfer documents had been
signed and stamped by the District Director of the Town and Country Planning
Department, Kwabre East, Mamponteng; <o:p></o:p>•&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the late Oscar Ofori Atta further made
a Statutory Declaration of transfer of ownership to him which was commissioned
by the High Court Registrar, Kumasi and signed by the vendor, vendee and
witnesses; <o:p></o:p>•&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the late Oscar Ofori Atta also made an
Indenture date 14th November 2010 signed by the parties and witnesses and
stamped by the Land Valuation Department on 4th April 2011; <o:p></o:p>•&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; he is in possession of the Site Plan
of Fawoade Planning Scheme for Kwabre District on plot 8 Block ‘O’.&nbsp; <o:p></o:p>The
defendant/appellant finally averred that the respondent was claiming for a
wrong plot since she described her plot as Plot 1 Block ‘A’ Fawoade New Site
while he was occupying Plot 8, Block ‘O’ Fawoade. <o:p></o:p><o:p>&nbsp;</o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The case went through the normal trial
with the respondent calling one witness whilst the appellant called three
witnesses.<o:p></o:p>